Agunah

Agunah (Hebrew: עגונה‎, plural: agunot (עגונות); literally "anchored" or "chained") is a halachic term for a Jewish woman who is "chained" to her marriage. The classic case of this is a man who has left on a journey and has not returned, or has gone into battle and is MIA. It also refers to a woman whose husband refuses, or is unable, to grant her a divorce document in Jewish religious law, known as a get.

For a divorce to be effective, Jewish law requires that a man grant his wife a get of his own free will. Without a get no new marriage will be recognized, and any child she might have with another man would be considered a mamzer, a term often translated as but dissimilar to the concept of a bastard. It is sometimes possible for a woman to receive special dispensation from a halachic authority, called a heter agunah, based on a complex decision supported by substantial evidence that her husband is presumed dead.

Because of the difficulty of the situation for women in such situations, it has been a task for every generation of halakhic authorities to try to find halakhically acceptable means to permit such women to remarry. In the past it was not uncommon, due to the danger of travel and primitive means of communication, for people leaving home never to be heard of again; consequently rabbis often had had to deal with this issue. Over the past few centuries, thousands of responsa have been written to deal with cases of agunot.

In the past most agunah cases were due to a husband dying without leaving clear evidence of his demise, or becoming mentally ill (insane). Nowadays many agunah cases arise as a result of a husband withholding a get, perhaps seeking a more favorable divorce settlement, or out of vindictiveness. In response agunah groups have organized to support these women and try to find a solution to this problem. Various remedies have been proposed, but as yet, no one solution has common acceptance. Nevertheless, the Prenuptial Agreement for the Prevention of Get-Refusal is one remedy which is in use in Modern Orthodox Jewish communities worldwide and is accepted by moderate halakhic authorities.

Causes

The disappearance of the husband without any witnesses declaring that he is dead;

The husband succumbing to a physical or mental disease that leaves him in a coma or insane and unable to actively grant a divorce;

The husband refusing to grant his wife a get when she is deemed entitled to one under Jewish law. A woman denied a get by her husband is technically called a mesorevet get, although the term agunah is more commonly used.

A woman who is denied a divorce from her husband is not considered an agunah until her husband refuses an order by a rabbinic court to give her a get.

What constitutes a legitimate request for a divorce is based on halakhic considerations and the particular case of the couple. See Mesorevet get below.

Background

Because of the serious nature of adultery in Jewish law, an agunah is forbidden to marry another man, regardless of the circumstances, whether accidental or malicious, that left her an agunah in the first place, or the amount of time that has passed since she first became an agunah. A child born from another man to an agunah is considered a mamzer (halakhically illegitimate), and may only marry another mamzer or a convert.

Because of the dire situation of the agunah, every effort is made to release her from her marriage. This can be done in three ways:

Locating the husband and persuading him to give his wife a get;

Providing evidence that the husband is dead;

Finding a flaw in the original marriage ceremony, thereby retroactively annulling the marriage.

According to most rabbis, reasonable circumstantial evidence is sufficient to prove the death of the husband, and no direct testimony is required. This is based, among other things, on the talmudic assertion: "The Rabbis taught: 'If he fell into a lion's den, [bring witnesses to] testify [that he is dead], if he fell into a ditch of snakes and scorpions - [there is] no [need] to testify [that he is dead]'" (Babylonian Talmud, Yevamot 121a). In other words, if it is known that the man fell into a ditch of snakes and scorpions and did not come out, it can be assumed that he is dead, and there is no need for further evidence (unlike falling into a lion's den where there is still a slight chance of survival). If, however, it is later discovered that the husband is not dead, the woman will find herself in particularly bad circumstances: her children from her second marriage will be considered mamzerim (bastards), and she will be forced to divorce both her first and second husbands, subject to the halakhic ruling that an adulterous woman "is forbidden to her husband and the man with whom she fornicated". While such situations are extremely rare under normal circumstances, they did occur in the aftermath of the Holocaust and also occurred frequently in the wake of pogroms and other forms of persecution.

Finding a flaw in the marriage ceremony is considered to be a last resort in releasing an agunah. It is rarely used as it is typically difficult in finding actual cause in most marriages to retroactively invalidate it. In Jewish law, a marriage must be performed in front of two witnesses. In order to release the agunah, efforts are made to identify reasons why one of the witnesses was ineligible. This is typically unachievable as strong efforts are made at the time of marriage to ensure the validity of the witnesses and the marriage ceremony. Another possibility is to prove that the woman did not consent to the marriage clearly and of her own free will, so that the marriage ceremony is declared invalid. This too is not generally accepted amongst the halakhic authorities as there is generally no method to disprove intent. It is felt that the purpose of this endeavor is solely or primarily to retroactively delegitimize a marriage that was performed and accepted often many years previously. Annulling the marriage has no impact on the status of the woman's children. However, since it is not a generally accepted mechanism, it may leave the wife susceptible to a halakhic ruling that she was still married, and any subsequent relations with another man to be adultery. And it may lead to other halakhic problems, so it is only used as a last resort by the authorities that do accept its use.

Only a woman can be declared an agunah. None of the prohibitions listed above goes into effect for a man whose wife has disappeared. This is because there is no prohibition in the Torah for a man to have two wives, and a child born to a married man with a single woman is not considered to be a mamzer. In the beginning of the 11th century, Rabbenu Gershom issued a decree prohibiting Jewish men from practising bigamy (though this was not accepted by certain remote Jewish communities such as the Yemenite Jews). To prevent this decree from causing flippant divorces previously unnecessary, Rabbenu Gershom also decreed that "a woman may not be divorced against her will." In certain extreme circumstances, however, such as the case of a man whose wife is missing, or who refused to accept a get for an extended period, a heter meah rabbanim (exemption by one hundred rabbis) may permit him to take a second wife (in the latter case, after depositing a get with them).[citation needed] This exemption is applied nowadays, only in extremely rare circumstances. Thus, it is not uncommon[citation needed] for a woman to maliciously refuse acceptance of a get, in effect "chaining" her husband.

In modern and ancient times, warfare has been a major cause of women being declared agunot (plural of agunah), as (especially in ancient times) soldiers are often killed with no one knowing. Many efforts have been made to resolve this problem in accordance with halakhic principles. During World War II, some American Jewish and other chaplains provided combat soldiers with a "provisional get", which only goes into effect if the husband is missing in action, leaving his wife an agunah. This is based on a talmudic explanation of the incident of King David and Bathsheba (see II Samuel 11). According to the traditional view, David did not sin by lying with a married woman, since all of his soldiers gave a "provisional get" to their wives before leaving for battle. "Rabbi Shmuel bar Nachmani said in the name of Rabbi Yochanan: 'Everyone who went to war on behalf of David, left a provisional get for his wife'" (Talmud Bavli, Tractate Shabbat 56a).

In Israel

In 1947 David Ben-Gurion agreed that the authority in matters of marriage and divorce would be invested in the hands of the Chief Rabbinate of Israel, and an agreement was signed stating that (among other matters), known as the "status quo letter".[1] In 1953 the Knesset enacted the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713 – 1953.[2] Section 1 of the Law states, "Matters of marriage and divorce of Jews in Israel, being citizens or residents of the State, shall be under the exclusive jurisdiction of the rabbinical courts."[2] The substantive provision of section 2 of this Law further states: "Marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law" (din torah).[2]

In 2010, Israel passed the Civil Union Law, allowing a couple to marry civilly in Israel if they are both registered as officially not belonging to any religion.[3]

A Muslim woman in Israel may petition for and receive a divorce through the Sharia courts without her husband's consent under certain conditions, and a marriage contract may provide for other circumstances in which she may obtain a divorce without her husband's consent. A Muslim man in Israel may divorce his wife without her consent and without petitioning the court.[4]

Christians in Israel may seek official separations or divorces, depending on the denomination, through ecclesiastical courts.[4]

In 2007 the Chief Rabbinate found that in Israel men and women were refused divorce in equal numbers, 180 women and 185 men over a two-year period. The Director-General of the Rabbinical Courts said this showed that "the claims by women's organizations of thousands of women whose husbands refuse to give them divorces have no basis in reality".[5] Nevertheless,

"A woman suffers more in this situation, as she is Biblically forbidden to marry again, and children she might bear to another man would be considered mamzerim (bastards) according to halakhah. A man is similarly not permitted to marry before being divorced, but the ban is much less severe (because monogamy was instituted by one single overreaching authority in Europe in around the year 1000CE, and was accepted in Europe (Ashkenazim), whereas Sefardic and Mizrahi (Eastern) Jewish communities did not until very recently.) This considered, his future children will not be considered illegitimate."[5]

In 2015 Tzohar (a religious Zionist rabbinic organization in Israel), along with the Israeli Bar Association, introduced a prenuptial agreement meant to help ensure divorcing wives will receive a get; under the agreement the husband commits to paying a high sum of money daily to his spouse in the event of a separation.[6]

Mesorevet get / Get refusal

Mesorevet get is a term for a Jewish woman who is chained to her marriage because of her husband's refusal to give her a get she is entitled. A mesorevet get is a "victim of get refusal," otherwise known as a "modern-day agunah."

According to halakha, a get is only valid when it is given by a husband to his wife out of his own free will (Yebamot, 14:1). However, under certain circumstances pressure may be applied on a husband to force him to grant a divorce to his wife. Where a woman has proven one or more of a list of particular grounds for divorce, the rabbinical court (beth din) may apply pressure on the husband in those situations (Ketubot, 7:10; Gittin, 9:8). There are some halakhic decisors who would act accordingly in the cases of abuse or neglect (Shulchan Aruch, Even HaEzer, 154:3). Nevertheless, not under all circumstances is a wife entitled to demand a divorce according to halakha. If a wife who is not halakhically entitled to a divorce does demand one, she may not be considered as a mesorevet get by a Rabbinical Court. However, not any woman who wants to leave an unwanted marriage but is refused by her husband, is considered to be a victim of get refusal. There are opinions that deem a woman's repugnance for her husband as acceptable halakhic grounds for coercion (Rambam, Mishna Torah, Hilchot Ishut, 14:8). "It is said: In cases of granting a get to a woman, the man is forced until he says, 'I wish to do so'" (Babylonian Talmud, Arachin 21a; Rambam, Mishna Torah, Hilchot Gerushin, 2:2). Nevertheless, in almost all cases, it is required to leave the man some say in the matter, lest the get be considered a "coerced divorce", which is halakhically invalid. As ruled by Rabbeinu Tam (Sefer HaYashar, Response 24; Rema, Even HaEzer 154:21), pressures that can be exerted against the man include shunning, denying him communal benefits and honors, and in extreme cases even imprisonment. Legend has it that as a last resort where all else has failed, a tactic has been sparingly used in the past, to let him spend a night near a nameless grave, or to frighten him in some other way. In Israel, rabbinical courts are allowed by law to implement various measures to persuade a man to grant his wife a get (Rabbinical Courts Law [Enforcement of Divorce Rulings] 5755-1995).[7] These sanctions are a modern-day version of the aforementioned, Harchakot D'Rabeinu Tam, which include: revoking of a driver's license, closing of bank accounts, revoking professional licenses such as medical and legal, cancellation of a passport, and incarceration. Practically, one of the most effective of these has turned out to be revoking a recalcitrant husband's driver's license. Even so, neither the laws nor the Israeli Rabbinical Courts' enforcement, or lack thereof, have succeeded in erasing the blight of get refusal within Israeli society. In the Diaspora, the Rabbinical Courts have no such powers. Any practical power that they may wield would be the product of a binding arbitration agreement (Prenuptial Agreement for the Prevention of Get-Refusal), if signed previously by the combating couple. Within the past decade, both Orthodox rabbinical groups[8] and women's organizations[9] have decried the increasing number of cases of get refusal, as well as establishing task forces to deal with the issue and to help individual victims of get refusal.[10]

Many women's groups feel that rabbinical courts fail to use all the measures at their disposal to force men to grant their wives a get, thereby allowing a vengeful husband to blackmail his wife for years. Public criticism of the courts, as well as demonstrations, have been attempted to influence particularly notorious cases.

Several solutions have been proposed to help women who are denied a get:

Increasing the means available to the rabbinic courts to force husbands to grant their wives a get. In Israel, rabbinic courts can even imprison a husband until he acquiesces and grants a get to his wife. This is not, however, an option for rabbinic courts elsewhere, since they do not have the support of the state.

Having couples sign a Jewish prenuptial agreement, which requires the husband to pay high spousal support to his wife if he denies her a get, so as to provide incentive to the couple not to delay the divorce. Halakhic authorities in the United States have validated particular prenuptial agreements for the prevention of get-refusal.[11]

Having couples prepare a "provisional get," which will only go into effect under certain predefined circumstances.

Having couples agree to a "conditional marriage," which includes a stipulation in the marriage ceremony citing that under certain conditions (such as living apart for an extended period of time), the marriage itself would be nullified with no need for a get.

In 1995 the Israeli parliament gave the rabbinical court expanded legal power to sanction men who refuse to give their wives a get by suspending their driver's licenses, seizing their bank accounts, preventing travel abroad and even imprisoning those who do not comply with an order to grant a divorce; however, women's groups say the 1995 law is not very effective because the court uses sanctions in less than 2% of cases.[12]

In 2004, Justice Menachem HaCohen of the Jerusalem Family Court offered new hope to agunot when he ruled that a man refusing his wife a get must pay her NIS 425,000 in punitive damages, because "[R]efusal to grant a get constitutes a severe infringement on her ability to lead a reasonable, normal life, and can be considered emotional abuse lasting several years." He noted that "[T]his is not another sanction against someone refusing to give a get, intended to speed up the process of granting a get, and this court is not involving itself in any future arrangements for the granting of a get, but rather, it is a direct response to the consequences that stem from not granting a get, and the right of the woman to receive punitive damages." This ruling stemmed from the Public Litigation Project initiated by the advocacy organization Center for Women's Justice as one of a number of successful lawsuits filed in Israeli civil courts claiming financial damages against recalcitrant husbands.[13]

In 2007, an Israeli survey revealed that there only 180 cases of refusing-get husbands including 69 documented agunah cases. In contrast, there are 190 cases in which the wife refuses to give the husband a divorce.[14]

Outside Israel, an agunah could obtain a civil divorce and remarry via civil marriage, as non-Israeli legal systems generally do not recognize the agunah status. Nevertheless, an agunah would not typically pursue a second marriage, since her first marriage is still valid according to halakha, any other sexual relationships would constitute adultery from her first husband. Furthermore, according to halakha, any children born by an agunah are considered mamzerim (bastards).

In 2014 the Rabbinate of Uruguay instituted the requirement for all Jewish couples that marry under its auspices to sign a rabbinic prenuptial agreement. The agreement states that in the case of the couple divorcing civilly, the husband is obligated to immediately deliver to his wife a get. The initiative was launched by Sara Winkowski, a director of the Kehila, the Comunidad Israelita del Uruguay (Jewish Community of Uruguay), who is also a Vice President of the World Jewish Congress and longtime activist for the rights of women within Jewish law.[15]

Agunah Day

Agunah Day was established by ICAR - The International Coalition for Agunah Rights - in 1990, to raise public awareness to the plight of the Agunah and galvanize action to solve the problem. It is observed on the Jewish calendar date of the Fast of Esther.[16]

The Fast of Esther was chosen by ICAR as Agunah Day in order to symbolize identification with the Agunah for two contrasting reasons – due to affliction and due to salvation.[17] Like Esther, the Agunah of the present era does not want to be in the marriage in which she finds herself. Like Esther, many women who are refused a get live in fear of their spouses and live a double life. Like Esther, the Agunah, a victim of get-refusal, finds herself lacking control of her own freedom.[18]

Conservative Judaism

At the 1998 Jerusalem Agunot Conference, Rabbi Mayer Rabinowitz, the Chairman of the Joint Bet Din of the Conservative Movement, explained the four approaches taken by leaders of Conservative Judaism to find remedies for the problem of the agunah.[19]

The first, beginning in the 1950s, was the inclusion of the Lieberman clause, named for Talmudic scholar and Jewish Theological Seminary (JTS) professor Saul Lieberman, in the ketuba, requiring that a get be granted if a civil divorce is ever issued. Most Orthodox rabbis have rejected the Lieberman clause, although leaders of the Conservative movement claim that the original intent was to find a solution that could be used by Orthodox and Conservative rabbis alike, and that leaders of Orthodox Judaism's Rabbinical Council of America, and respected Orthodox rabbis, including Joseph B. Soloveitchik, supposedly recognized the clause as valid.[19] Later, because some civil courts viewed the enforcement of a religious document as a violation of the constitutional principle of the separation of church and state, Conservative rabbis began to require couples to sign a separate letter, stating that the clause had been explained to them as part of pre-marital counseling, and that both parties understood and agreed to its conditions, recognizing that this letter would constitute a separate civil document, enforceable in a civilian court.[19] However, many Conservative rabbis, including some on the movement's own law committee, had growing misgivings about the clause for religious reasons.

The second approach fell into the category of conditional marriages, t'nai b'kiddushin, and was based in part on past approaches used by both the French and Turkish rabbinates—but, according to Rabinowitz—had improvements gleaned from lessons learned from those past experiences. The ketubah was not changed, but a separate pre-marital agreement was signed, and in the presence of the rabbinical court, the prospective groom read it, and the prospective bride stated that she agreed to it. The agreement was that the parties understood that if a civil divorce were ever granted, then a get must be delivered within six months of that date. A refusal to abide by that agreement would give the court no choice but to consider the original marriage, and the original declaration of the groom, so flawed that it would be as if that marriage never occurred.[20]

The third approach, using contacts both within Judaism and external to it, was to coerce the recalcitrant husband to grant a get. One example cited at the conference was a case where the civilly-divorced husband planned to remarry, this time to a Catholic woman in a Catholic religious ceremony. The Conservative movement's Bet Din contacted the Catholic Church, which agreed to refuse to have the marriage performed until the previous marriage was religiously dissolved, resulting in the almost immediate granting of the get by the husband.[19]

Finally, in 1968, by a unanimous vote of the law committee, the final approach was initiated, when it was decided that the Joint Bet Din of the Conservative Movement could annul marriages as a last resort, based on the Talmudic principle of hafka'at kiddushin. According to Rabinowitz, just the threat of this action was sometimes enough to compel the former husband to grant a get.[19]

Changes in Orthodox approach

There is a long history of concern for the agunah on the part of orthodox rabbis, and a number of proposals have been put forth for consideration by religious leaders.[21] So far, no solution has been found that satisfies most orthodox religious leaders.

A number of modern papers and conferences have continued to discuss both issues and possible solutions, including the possibility of a modern takkanah, religious legislative enaction, to empower the Chief Rabbinate of Israel to intervene to annul marriages retroactively, in a way that was possible for some time during the Middle Ages.[22][23] Such proposals are considered too radical—and not legally permissible (in terms of halakha) -- by most orthodox leaders.[24][25]

However, as studies and discussions continue, a number of modern works and conferences have referenced the work of past Orthodox rabbis, such as Ya'akov Moshe Toledano, who recommended in 1930/31 that every Jewish marriage be made contingent on the "continuing agreement" of the local rabbinic court, so that the court could retroactively annul the marriage as a remedy to the agunah problem;[26] and Mnachem Risikoff, who recommended in 1937 that such consideration be given not to every local court, but at least to the Jerusalem rabbinical court, specifically recognizing that authority in the words recited under the chuppah, the wedding canopy. Risikoff, among others,[27] also proposed a discussion of the reinstatement of the Biblical status of the pilegesh, a relationship status between man and woman that does not require a Get upon dissolution, thereby avoiding the category of agunah.[28][29][30]

Other approaches that have been discussed by religious leaders, including leading orthodox rabbis, have included the possibility of prenuptial agreements, not incorporated into the ketubah or mentioned in the words recited by the groom during the ceremony, through which the husband and wife agree to abide by orders of a designated Beth Din, regarding the giving or acceptance of a get. Rabbi Jechiel Perr discussed such a proposal,[31] and it has been reported that Rabbi Moshe Feinstein, looked upon this idea with favor.[32] Additionally, discussions have considered the possibility of various forms of coercion that could be applied to the husband, to compel him to grant the Get.[23]

No proposal has so far met with universal approval on the part of the Orthodox rabbinate, although there have been some cases of individual rabbis taking what has been viewed as "maverick" individual action, including the convening of rabbinic courts to annual marriages, using the Geonic model. Such actions have been widely condemned within the orthodox community.[33]

In 2012 the International Rabbinic Fellowship (IRF), an international organization of (as of 2012) 150 Modern Orthodox rabbis, passed a resolution saying that, "IRF Rabbis may not officiate at a wedding unless the couple has signed a halachic prenuptial agreement. IRF Rabbis are further encouraged to participate ritually only in weddings in which the couple has signed a halachic prenuptial agreement. Ritual participation includes but is not limited to reading the ketubah, serving as a witness, and making one of the sheva berachot." This makes the IRF the only Orthodox rabbinical organization in the world to require its members to use a halachic pre-nuptial agreement in any wedding at which they officiate.[34]

Zika le-Yibbum

A related case is that of a woman whose husband has died childless: in such a situation, the husband's brother is required by Jewish law to enter into a levirate marriage with the widow so as to have children with her in the name of the deceased. The brother can refuse to do yibbum and instead perform a ceremony known as chalitza to release her from her bond to him (in modern times chalitza is nearly always performed instead of yibbum). If the brother is missing, or if he is still a child, the woman is required to wait until he is located or has reached adolescence so that he can perform the chalitza ceremony. There have been recorded cases of the husband's brother trying to blackmail the widow by delaying the chalitza ceremony, effectively leaving her as an agunah.[citation needed]

Karaite Judaism

As followers of Torah exclusively, the Karaite Jews say that a woman can claim a divorce. If a man refuses to give divorce to his wife, the beit din (Jewish legal court) may exercise its legal power to grant a divorce instead. Consequently, there are no agunot in Karaite Judaism.[citation needed]

↑The connection between the Fast of Esther and Agunah Day was presented as the explanation within a private member's bill to the Israeli Knesset on Agunah Day 2010. The bill, which did not pass into law, was drawn up by ICAR in an attempt to have Knesset officially declare the Fast of Esther as "Agunah Day" https://www.knesset.gov.il/privatelaw/data/18/2268.rtf The explanation for the proposed bill was authored by Dr. Rachel Levmore, Rabbinical Court Advocate, Coordinator for Matters of Iggun and Get-Refusal for the Council of Young Israel Rabbis in Israel and the Jewish Agency; member of ICAR. Translated by Shoshana Tessler; edited by Robyn Shames

↑One example is Rabbi Elisha Ancselovits, The Man Divorces--the Woman Gets Divorced: Explaining the halakha as an aid to solving the Problem of Marriage for th Secular Sector,Ma'agilim 3, 2000, 99-121, as cited in The Manchester Analysis,op.cit., 206. Ancselovits believes the Sheva Brachot, the traditional wedding blessings can be recited for such a union. Other authorities cited on this page raise the problem that according to Maimonides, even though his was a minority opinion, the option of joining with a pilegesh was only reserved for kings.

↑Manchester Analysis, op.cit., pages 91, 155, 162, 163, 174, 180. This work references Risikoff's book, Shaarei Shamayim (New York, 1937), which includes both his arguments for enhanced recognition of the court in general, and reliance on it -- through a creative revision of the traditional words recited by a groom during a Jewish marriage ceremony -- in the case of the Agunah, in particular.